SSR 88-2c: SECTIONS 205(g) AND 206(a) OF THE SOCIAL SECURITY ACT (42
U.S.C. 405(g) AND 406(a)) ADMINISTRATIVE APPEALS -- RULE GOVERNING THE
LOCATION OF HEARINGS -- RIGHT TO REPRESENTATION BY ATTORNEY

The claimants, who sought disability insurance benefits, requested that
their administrative hearings be held in Fort Myers, Florida. The
claimants alleged that under the procedures governing the location of
hearings, claimants living within 75 miles of Tampa, Florida have their
hearings held in that city while claimants living in the same general
area, but more than 75 miles from Tampa, have their hearings held in Fort
Myers. The claimants in this case lived within 75 miles of Tampa and
received notice that their hearings would be held in that city. Instead of
attending these hearings, the claimants filed a court challenge,
contending that the 75-mile rule violated their statutory right to counsel
of their choice at these hearings. The district court held that it
did not have jurisdiction over this dispute. Under 42 U.S.C. 405(g), an
individual may request a court review after an administrative hearing. The
claimants in this case, however, did not have administrative hearings, nor
did they meet the narrow exception to the "after a hearing" requirement of
42 U.S.C. 405(g) that was crafted by the Supreme Court in Mathews
v.Eldridge, 424 U.S. 319 (1976) (SSR
76-23c, C.E. 1976-1980, p. 361). The district court further
held that the claimants had failed to state a claim upon which relief
could be granted. The court rejected the claimants' "equal protection" and
"separation of powers" arguments as grounds for avoiding the dismissal of
their complaint. The court found that the 75-mile rule was apparently
designed to reduce the travel of claimants and that, since the claimants
lived closer to Tampa than they did to Fort Myers, the only persons who
would have benefited from the repeal of this rule would have been the
claimants' lawyers, who were located in Fort Myers. The court further
found that the claimants did not have any statutory right to counsel under
42 U.S.C. 406(a), since that statute merely provides that qualified
attorneys may represent claimants at hearings. Finally, the court found
that the claimants failed to state a claim for relief under the mandamus
theory in 28 U.S.C. 1361. The claimants did not allege than they had a
right to a hearing at any location or that there was a duty to schedule
their hearings at any particular location. Nor did they allege that there
were no other adequate means available to attain the relief they sought.
In view of these findings, the district court dismissed the claimants'
complaint.

CASTAGNA, District Judge:

The Court has for consideration defendants' motion to dismiss. Plaintiffs
have responded to the motion.

This suit is brought on behalf of thirteen present or past claimants
seeking disability benefits under the Social Security Act ("the Act").
Each of these plaintiffs is represented by the law firm of Kishner &
Castellanos of Fort Myers, Florida. These plaintiffs reside in the
Sarasota-Bradenton area, which is approximately 70 miles north of Fort
Myers. In order to secure benefits under the Act, these plaintiffs asked
the Social Security Administration for Administrative hearings before an
Administrative Law Judge (ALJ). Each plaintiff allegedly asked that his or
her hearing be located in Fort Myers.

Defendants are members of the Department of Health and Human Services
(HHS) which administers the Act. The Office of Hearings and Appeals in
Tampa, Florida has jurisdiction over the claims brought by each of these
plaintiffs. The defendants allegedly instituted a new rule governing the
location of hearings for claimants. Under this rule, claimants living
within 75 miles of Tampa would have their hearings conducted in that city.
Claimants living more than 75 miles from Tampa could have hearings in Fort
Myers. Each of the named plaintiffs lives within 75 miles of Tampa and
received notice that their hearings would be conducted in that city. They
now claim that this new rule violates their right to counsel of their
choice at these hearings. The complaint alleges that this rule was
designed to discourage claimants from using the law firm of Kushner &
Castellanos by locating hearings in Tampa.

Each plaintiff was notified that his or her hearing would be conducted in
Tampa. No plaintiff attended these hearings. Some plaintiffs' claims were
dismissed for failure to attend these hearings, and the remaining
plaintiffs' claims are allegedly in jeopardy of dismissal.

Defendants argue that this complaint should be dismissed for two reasons.
First, they argue that the Court has no jurisdiction over this dispute.
Second, defendants contend that this complaint fails to state a claim upon
which relief could be granted.

1) 42 U.S.C. § 405(g) -- As the first of two grounds for jurisdiction,
plaintiffs allege that this statute permits the Court to hear their claim.
This statute generally permits access to a federal court only after an
administrative hearing on a claim for benefits under the
Act.[1] In Mathews v.
Eldridge, 424 U.S. 319 (1975) the Supreme Court crafted a narrow
exception to the "after a hearing" requirement of this statute. The
parties disagree whether this case falls within that narrow exception.

Mathews involved a constitutional due process challenge to
procedures which resulted in the termination of disability benefits. The
claimant here had received those benefits for several years. Based on his
answers to a medical questionnaire, the relevant agency informed him that
his benefits would be terminated unless he applied for administrative
reconsideration. Instead of pursuing that administrative path, the
claimant in Mathews filed a suit in federal district court under § 405(g),
alleging that the termination procedures violated his right to procedural
due process. The Supreme Court held he could bring such a suit, even
though he had never received a hearing before the Secretary.

The present suit is unlike Mathews in two respects. First, this
case involves no constitutional challenge. Instead, plaintiffs base their
case on a supposed statutory right to
counsel.[2] Second, unlike
Mathews, plaintiffs' challenge does not rest on the presumption
that subsequent proceedings will be too late to protect their rights. 424
U.S. 331. The claimant in Mathews had already been receiving
benefits for several years when the allegedly unconstitutional procedures
threatened any future payments. He needed a predeprivation hearing,
because his dependence on the benefits meant that an erroneous termination
could not be compensated by retroactive payments. Id. Here, no
plaintiff yet receives any benefits under the Act. They do not yet have a
dependence on these payments which should not be interrupted without
adequate procedures.

Although no constitutional challenge is found in the complaint,
plaintiffs have raised two new issues in their arguments opposing the
motion to dismiss. They argue that defendants' 75 mile rule violates their
equal protection rights, as well as being a violation of separation of
powers principles. These new issues would be more properly before the
Court after an appropriately amended complaint. In order to preserve
scarce judicial time resources, and because the parties have adequately
argued the issues, the Court will treat these new issues as if included in
the complaint. See Czosek v. O'Mara, 397 U.S. 25, 27 (1970).

Plaintiffs' first constitutional challenge is based on the principle of
equal treatment protected by the Fifth Amendment. They claim that the 75
mile rule discriminates against them and in favor of claimants who are not
affected by the rule. Plaintiffs contend that a claimant living more than
75 miles from Tampa can still be represented by a lawyer who has
investigated and done background on a particular case. According to
plaintiff's those living less than 75 miles from Tampa must obtain new
counsel who are less familiar with their case, thereby enhancing the
chance that their claims will be denied.

This equal protection claim cannot survive even the liberal standard of a
motion to dismiss for several reasons. First, and foremost, there are no
allegations or arguments to the effect that the law firm will no longer
represent these plaintiffs simply because hearings are conducted in Tampa.
Second, there are no allegations or arguments that other similarly
situated claimants receive preferential treatment. Finally, the Court can
imagine no way by which plaintiffs could prove that this rule is an
irrational classification. This rule is apparently designed to reduce the
travel of claimants. Even if these plaintiffs' hearings were conducted in
Fort Myers, they would still be required to travel a greater distance than
the trip to Tampa. The only persons who would benefit from a repeal of
this rule would be plaintiffs' lawyers, who are located in Fort Myers.

Plaintiffs' second new constitutional claim is equally unmeritorious.
They seem to argue that a violation of their statutory right to counsel
automatically breaches separation of powers principles. As stated above,
42 U.S.C. Section 42(a) does not provide a right to counsel, it merely
permits qualified lawyers to appear at hearings. Furthermore, plaintiffs
have not cited, nor is the Court aware of any authority for the
proposition that a statutory violation by a member of the executive branch
violates the separation of powers principle.

2) 28 U.S.C. Section 1361 -- As an alternative basis for jurisdiction,
plaintiffs cite this statute, which provides that a federal court may hear
an action in the nature of mandamus. Several reported decisions have
permitted claimants under the Act to use this statute as a jurisdictional
base. Monitor Corporation v. United States, 440 F.Supp. 473 (S.D.
Fla. 1977); Kennedy v. Harris, 87 F.R.D. 372 (S.D. Cal. 1980).

Assuming arguendo that plaintiffs could use this statute to invoke
the Court's jurisdiction, the complaint fails to state a claim for relief
under a mandamus theory. A party seeking a writ of mandamus must have no
other adequate means to attain the relief he desires, and he must show
that his right to the writ is clear and indisputable. Kerr v. U.S.
District Court for the Northern District of California, 426 U.S. 394
(1976). He must show that he has a clear right to the relief sought, and
that the defendant has a clear duty to do the act in question. Carter
v. Seamans, 411 F.2d 767, 773 (5th Cir. 1969). The complaint contains
no allegations that defendants have a duty to schedule these hearings at
any particular location. It contains no allegations that plaintiffs have a
right to a hearing at any location. Finally plaintiffs have not alleged
that all other avenues are closed.

In summary, the complaint does not allege jurisdiction under 42 U.S.C. §
405(g). Even if the constitutional arguments first raised in plaintiffs'
memoranda are considered, the complaint fails to state a claim upon which
relief can be granted. Conley v. Gibson, 355 U.S. 1 (1955).
Assuming that this Court had jurisdiction over this dispute by virtue of
the mandamus statute, the complaint still fails to state a claim upon
which relief could be granted. Therefore, it is

ORDERED:

1. The motion to dismiss in granted and this cause is dismissed.

[1] In part this statute
provides: "Any individual,after any final decision of the Secretary made
after a hearing to which he was a party, irrespective of the amount
in controversy, may obtain review of such decision by a civil action
commenced within sixty days after the mailing to him of notice of such
decision or within such further time as the Secretary may allow . . ."
(Emphasis added).

[2] The Court notes that this
statute, 42 U.S.C. § 406(a) merely provides that qualified attorneys are
entitled to represent claimants. The statute does not give claimants any
substantive right to representation by an attorney. Plaintiff's have not
cited, nor is the Court aware of any authority for the proposition that
they have a constitutional right to counsel in these hearings.

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